Beware discipline for FMLA-related tardiness

It may be terribly annoying and very disruptive, but it is also the law: Employees eligible for intermittent FMLA leave are entitled to take that leave at the beginning of their scheduled shifts if they need to.

While that may make them late for work, you can’t punish that tardiness as long as the employee follows your call-in policies and the underlying reason for being late is related to intermittent FMLA leave.

Recent case: Mercy Agbejimi worked as a respiratory therapist for Advocate Health Care. Her daughter had serious medical problems that sometimes required someone to stay with her. When this happened right before Agbejimi was due at work, she had to stay home until she could get a relative or someone from her church to come over.

Agbejimi claimed she followed her employer’s call-in policies each time she was going to be late, calling the technician in charge during the current shift and notifying her supervisor that she would be late due to her daughter’s condition. Still, the employer disciplined her for being tardy.

Agbejimi sued, alleging she had been punished for taking intermittent FMLA leave.

The court said her case could go to trial. It reasoned that employees may use intermittent FMLA leave when they are going to be late due to events related to a condition covered by the FMLA. (Agbejimi v. Advocate Health and Hospitals Corporation, No. 08-C-2754, ND IL, 2009)

Advice: Employees are entitled to basic medical privacy. You can require employees to call in to say they’ll be late, but you shouldn’t make them explain the underlying medical reason.